Hiring Employees “Because Of” Their Race, National Origin or Gender is “Direct Evidence of Discrimination.”
I did not say it is unlawful yet. It is just discriminatory. That leaves room for the employer to go forward with evidence and the burden of persuasion to prove up an “Affirmative Defense” to make its discrimination “lawful.” (That is next week’s Blog discussion as to the circumstances that hiring because of a Protected Status may be lawful). Remember: Discrimination lawyers do not care whether a company discriminated against an Applicant or employee. Rather, concern arises only if the employer’s at-issue employment decision was unlawfully discriminatory.
In legal terms, making a decision to hire based on race or National Origin (or gender) is “direct evidence” of unlawful employment discrimination…ABSENT what lawyers call an “Affirmative Defense” that would make the otherwise bad act lawful.
In law, there are two primary kinds of evidence: “direct evidence” and “circumstantial evidence.” (“Circumstantial” evidence then breaks down into subset types of inferential evidence, such as “comparative” and “statistical” evidence). “Direct Evidence” takes the guesswork out of the fact trying to be established (what the intent (motive) was; what the act was; who the actor was; where the act occurred; when the act occurred, etc.: “It was me, Mr. Green in the Library with the Candlestick at high Midnight.”)
Confessions are a form of “Direct Evidence.” Direct Evidence supports the truth of the assertion without the need for any inferences or interpretation.
I saw my first piece of “direct evidence” of unlawful employment discrimination as a first-year defense lawyer two weeks into my first legal job. I was reviewing applications in a class action “failure-to-hire” women discrimination case brought against a major glass maker my law firm represented. The recruiter’s margin notes, handwritten on the border of an application as was the routine or habit of the day back before computerized Applicant Tracking Systems (and even before personal computers had been invented) said: “Pregnant.” The “No Hire” box to the left of the note was checked. The woman was not hired. I put a paperclip on that application (this was still four years before Post-It Pad Notes).
As I thumbed through the next 20 or so applications from the company’s eight recruiters, I came upon another one of that same recruiter’s rejection applications: the margin note on this one said: “Has kids.” I put a paperclip on that application, too. ( I had by that time reviewed many other applications which noted that men had kids and had been offered a job nonetheless).
The next of this recruiter’s “Reject” applications of women I happened upon had the “No Hire” box again checked but with this hand-written margin note: “Married.” That was the moment it occurred to me that I had better walk next door to the Partner who was in charge of the client and the case and report that this case might be a candidate for settlement and some recruiter training.
Indeed, two months later after I wrote a detailed report analyzing this particular recruiter’s treatment of female Applicants, the company took action. (I eventually learned from the recruiter’s co-workers that this recruiter only extended offers for entry-level labor positions to women if they were (a) single; (b) had a “stocky” figure, and (c) were daughters of farmers).
I then saw the power of “direct evidence” firsthand. Our client’s VP HR asked me to fly halfway across the country to his HQ offices (co-located with its major manufacturing plant where the recruiter worked) for a meeting.
My assignment was to sit and watch as this very experienced HR Manager brought the recruiter in question into his office for an interview. As the recruiter sat down in front of the VP HR’s massive desk, the VP tossed s stack of papers across his desk with a paper tab placed along the right edge of each document. I immediately recognized the documents as company applications. I quickly realized the tabs the VP HR had attached were the locations on the applications of this recruiter’s offending margin notes.
After looking at three or four of the applications in the stack, the recruiter paused, put the stack of applications in his lap, and then asked: “Well, I guess the reason I am here with you and Mr. Fox is because I’m fired, right?” The VP HR simply nodded without saying anything. He then reached across his desk motioning to retrieve the applications (it was clear to me that the VP HR did not want to talk to the recruiter, but rather wanted to show his disdain for him) and said very quietly: “Security will take you to the front gate. We will ship your personal belongings to your house in the coming days. Good day.”
The VP HR was not there to argue the matter: the applications told the story. The Recruiter did not plead his case: the smoking gun evidence was sitting in his lap. Not much needed to be said except how the recruiter would recover his personal possessions from his work desk.
“Direct evidence” is the most powerful kind of evidence of unlawful employment discrimination because it leaves no doubt about a critical fact that the direct evidence proves in and of itself. This is why plaintiffs’ lawyers LOVE “direct evidence” cases. Some other more generalized examples:
1. Shakespeare’s famous quote which has wrongly become an anti-lawyer joke (Shakespeare actually wrote it in praise of lawyers—but that is a longer Blog) is direct evidence of bad intent, even if not proof of the bad act itself:
“The first thing we do is, let’s kill all the lawyers.”
The quote leaves no doubt about Dick the Butcher’s intent in Act IV, Scene II of Shakespeare’s famous historical play Henry VI (Part II). (But alas, no lawyers were harmed, by the way, in the telling of Henry VI’s life story.)
2. Here is an example of a murder confession which vividly explains why prosecutors LOVE “Direct Evidence:” it creates an “open and shut case” even a first-year lawyer could win at trial. In this case, a notorious serial killer and prostitute operating in north Florida in 1989 and 1990 shot and killed 6 of her customers at point-blank range with her pistol. She then created this chilling piece of “direct evidence” when discussing her subsequent conviction and death penalty:
“I want the world to know I killed these men, as cold as ice. I’ve hated humans for a long time. I am a serial killer.” — Aileen Wuornos
In legal terms, making a decision to hire based on race or National Origin (or gender) is “direct evidence” of unlawful employment discrimination…ABSENT what lawyers call an “Affirmative Defense” that would make the otherwise bad act lawful.